Whether a public officer could hold two public offices

Nicholas Rono v County Secretary County Government of Bomet & 3 others [2020] eKLR

Petition No. 3 of 2019

Employment and Labour Relations Court at Kericho

M Mbaru, J

July 30, 2020

Reported by Chelimo Eunice

Constitutional Law – interpretation of constitutional provisions – interpretation of article 260 as read together with articles 10 and 77 of the Constitution on the meaning of a public officer - who was a public officer and what was the difference between a public officer and a state officer – whether article 77(1) of the Constitution, which barred a full time state officer from participating in any other gainful employment, was applicable to a public officer - whether a person holding the position of a municipal manager with a county government was a public officer - whether a public officer could hold two public offices – where a party held two public offices, as a municipal manager with a county government and a member of a county assembly service board – whether the functions of a municipal manager and a member of a county assembly service board were co-relating and reinforcing – Constitution of Kenya, 2010, articles 10, 77 and 260;

Civil Practice and Procedure – pleadings – constitutional petition – content of a constitutional petition - particulars to be pleaded in a constitutional petition – requirement that a litigant in a constitutional petition had to set out with reasonable degree of precision in particular how the alleged acts amounted to infringement of the litigant’s constitutional rights – whether a petition challenging the constitutionality of public officers holding two public service offices met the threshold of a constitutional case - Employment and Labour Relations Curt (Procedure) Rules, rule 7.

Brief facts

The petitioner sought various orders, including a declaration that the appointment of the 4^th respondent as a member of the Bomet Municipal Board (municipal manager) by the 1^st respondent was unconstitutional; a declaration that the appointment of the 1^st respondent as a member of the 2^nd respondent’s board (board member) was unconstitutional and an order of refund of all the salaries and/or allowances received by the 4^th respondent as a result of his appointment to the above positions.

The petitioner argued, among others, that the 4^th respondent was appointed to the position of a municipal manager on a 5 years’ renewable contract vide an appointment letter dated September 10, 2018. Then, while still a municipal manager, he was appointed a board member of the 2^nd respondent vide Gazette Notice No. 10671 dated October 11, 2018, hence occupying two public offices at the same time and earning two separate salaries from the public coffers contrary to law. He argued that those appointments were all targeted and aimed at the 4^th respondent and no advertisement was done.

The 4^th respondent opposed the petition arguing, among others, that the nomination as a board member was a part time responsibility and at no time was he paid salary for the nomination, that at the time of appointment as a municipal manager he was not in any other gainful employment as alleged by the petitioner, that he had never earned two salaries, that he had since terminated his contract as a municipal manager due to job dissatisfaction and that he was never a state officer. The 1^st respondent supported the 4^th respondent’s arguments.

It was the 1^st, 2^nd and 3^rd respondent’s case that the 4^th respondent was a public officer and not a state officer and was hence not barred from holding and being in gainful employment while in the service of the 3^rd respondent. That constitutional provisions relating to state officers did not apply to him.

The 2^nd respondent on its part stated that through a regrettable oversight caused by misrepresentation and concealment of information by the 4^th respondent, the 4^th respondent was further appointed as a board member. That due process was followed, save the 4^th respondent was deceitful and failed to disclose the fact that he was already employed by the 3^rd respondent as a municipal manager.

Issues

1. Whether a petition challenging the constitutionality of public officers holding two public service offices met the threshold of a constitutional case.
2. Who was a public officer and what was the difference between a public officer and a state officer?
3. Whether article 77(1) of the Constitution, which barred a full time state officer from participating in any other gainful employment, was applicable to a public officer.
4. Whether a person holding the position of a municipal manager with a county government was a public officer.
5. Whether a public officer could hold two public offices.
6. Whether the two functions of a municipal manager and a member of a county assembly service board were co-relating and reinforcing.

Relevant provisions of the Law

Constitution of Kenya, 2010;

Article 77 - Restriction on activities of State officers

1. A full-time State officer shall not participate in any other gainful employment.

Article 260 - Interpretation

“public officer” means-

(a) any State officer; or

(b) any person, other than a State Officer, who holds a public office;

Held

1. A person seeking redress from the court on a matter which involved a reference to the Constitution, had to set out with reasonable degree of precision in particular how the alleged acts amounted to infringement of the person’s constitutional rights.
2. In the body of the petition, the petitioner had enumerated various articles of the Constitution which were said to have been contravened by the actions and conduct of the respondents and gave particulars. The foundation of each contravention was addressed with details.
3. At the core of the petition was the appointment of the 4^th respondent. The court appreciated and understood the exact nature of the petitioner’s case of public officers holding two public service jobs. The petition, thus, was properly before the court pursuant to rule 7 of the Employment and Labour Relations Curt (Procedure) Rules, read together with the Constitution and the Rules thereto.
4. Article 10 of the Constitution bound all state organs, state officers, public officers and all persons whenever they applied or interpreted the Constitution,  enacted, applied or interpreted any law, made or implemented any public policy decision, to national values and principles of governance which included participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability and sustainable development.
5. Although the national values and principles of governance enshrined in article 10 of the Constitution were not on their own justiciable, they and the preamble of the Constitution had to be given effect wherever it was fairly possible to do so without violating the meaning of the words used.
6. Articles 260, 77 and 10 of the Constitution were all reinforcing. Whereas under article 260 of the Constitution, a public officer was any person other than a state officer who held public office, the fundamental connection was that of a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer. Being a public officer was all inclusive. For article 10 of the Constitution to bear fruit and have its full force, the provisions of articles 260 and 77(1) of the Constitution could not be read alone.
7. Strictly speaking, the proper meaning of public officer was that embodied in article 260 of the Constitution. The different definitions in other statutory provisions ought not take precedence over the constitutional provisions. Thus, the proper meaning of public officer was a state officer or any other person who held public office, an office within the national government, county government or public service, a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer.
8. The 4^th respondent was appointed as a municipal manager under the provisions of section 29 of the Urban Areas and Cities Act and issued with a 5 years’ contract. The position was full time and with a given salary. Employment commenced on September 10, 2018. The position of municipal manager was advertised in the print media. There was no breach of article 35 of the Constitution as alleged in the petition. However, while serving the 3^rd respondent as a municipal manager under the 5 years’ contract, the 4^th respondent accepted the nomination as member of the 2^nd respondent.
9. According to the provisions of section 12 of the County Government Act, duties and functions of a board member included, providing services and facilities to ensure the efficient and effective functioning of the county assembly, constituting offices in the county assembly service, and appointing and supervising office holders and preparing annual estimates of expenditure of the county assembly service and submitting them to the county assembly for approval, and exercising budgetary control over the service.
10. On the other hand, under sections 28 and 29 and Second Schedule to the Urban Areas and Cities Act, the municipal manager was the principal manager of the municipal pursuant to article 184 of the Constitution. Such office was to provide for the classification, governance and management of urban areas and cities, to provide for the criteria of establishing urban areas, to provide for the principle of governance and participation of residents and for connected purposes.
11. The two functions of municipal manager and member of county assembly service board were not reinforcing. Each was an independent office with different functionalities and constituted under different legal regimes.
12. The respondents in the appointment of the 4^th respondent as municipal manager and board member could not extricate themselves from the requirements of the Constitution and the law. Being a public officer carried with it an all overriding duty of integrity in a manner that maintained public confidence and professionalism within the organization being served whether it be county government or public service. The 4^th respondent holding the public office of municipal manager held such an office and was being sustained in terms of remuneration and benefits from the public exchequer. He could not hold another public office, being sustained in terms of remuneration and benefits from the public exchequer whether on part time basis or full time. Both offices were hence held in conflict of interest.
13. Public officers ought to be appointed on the basis of the criteria set out in chapter 6 of the Constitution. They had, in addition, be appointed in accordance with the national values and principles set out in article 10 of the Constitution. The 4^th respondent failed the test of the Constitution and the law.
14. To allow the 4^th respondent to hold both offices was unconstitutional and went contrary to sections 13 and 26 of the Leadership and Integrity Act, which required the 4^th respondent not to hold any other office for gainful employment while in the full time service of the municipal and the 3^rd respondent.
15. To hold dual offices with the 1^st and 2^nd respondents without disclosure to the 2^nd respondent was contrary to section 22 of the Public Officer Ethics Act. That depicted the 4^th respondent as a liar, dishonest and person lacking integrity to hold public office. The overt acts of misrepresentation before the 2^nd respondent, the concealment of relevant information and leading to his holding dual positions in the public service placed him in conflict with the provisions of article 10 read together with article 77(1) of the Constitution, the Leadership and Integrity Act and the Public Officer Ethics Act. Such conduct made him unfit to hold public office.
16. It was regrettable that the 1^st respondent took such a view that the 4^th respondent while in the service of the municipal as manager could hold another position with the 2^nd respondent since it was part time. That was absurd taking into account the position held by the officer in the administration of the 3^rd respondent. To allow the 4^th respondent hold dual offices remunerated from the exchequer whether directly or indirectly was to place an unnecessary burden on the taxpayer and contrary to article 226 of the Constitution.
17. The 4^th respondent on his replying affidavit reinforced a background of deceit, falsehoods and one not to be trusted and relied upon as a public officer. The appointment as municipal manager came in first. During such appointment, he accepted appointment with the 2^nd respondent. Yet his affidavit was tailored and couched to give an impression that while serving under the 2^nd respondent, he applied for the position of municipal manager and later due to job dissatisfaction he terminated the contract. The 4^th respondent was aware, at all material times, that while serving as municipal manager, he accepted another appointment and he hence became conflicted.
18. Whereas the 4^th respondent accepted the appointment as municipal manager while he was not employed elsewhere and that was allowed under the law and pursuant to section 28 and 29 of the Urban Areas and Cities Act, on the same breath his appointment as a board member pursuant to section 12 of the County Government Act read together with articles 10 and 77(1) of the Constitution was null and void ab initio. The 4^th respondent should not have been holding two public offices which did not co-relate.
19. Tax-payers ought not be unduly burdened by being compelled to shoulder the consequences of people whose actions contravened the Constitution, the social contract between the governors and the governed, and expect the people, the principals of the governors on whose behalf the governors exercise sovereign power, to pay for the governors’ sins. There were cases where public officers would be held personally liable.
20. The proceeds received from the 2^nd respondent as remuneration, allowances and benefits ought to be quantified and he ought to refund the same to the 2^nd respondent for use and in the public benefit. Such was to be applied in terms of article 226(5) of the Constitution, which provided for the personal liability of any holder of an office who caused misuse of public funds contrary to law.
21. In the circumstances, the misrepresentation and concealment of information by the 4^th respondent for appointment as a board member being in breach of the Leadership and Integrity Act and also the Public Officer Ethics Act placed him in bad standing to hold any public office. Having put public resources and funds into waste by deception and concealment, the 4^th respondent did not stand in good stead.

 Petition allowed.

Orders

1. Declaration issued that the 4^th respondent’s appointment as member of the Bomet County Assembly Service Board vide Gazette Notice No. 10671 was unlawful and unconstitutional, null and void.
2. Declaration issued that actions of the 4^th respondent contravened the Constitution, Leadership and Integrity Act and Public Officer Ethics Act and he stood unfit to hold public office.
3. Gazette Notice No.10671 dated October 11, 2018 and published on October 19, 2018, appointing the 4^th respondent as member Bomet County Assembly Service Board was revoked.
4. The 4^th respondent was ordered to refund all monies received from the 2^nd respondent in form of remuneration, allowances and benefits for the entire duration he was a member of Bomet County Assembly Service Board and within ninety (90) days of the judgment.
5. The clerk to the 2^nd respondent ordered to quantify all proceeds received from the 2^nd respondent as remuneration, allowances and benefits for use and benefit of the 4^th respondent for his refund and report to the court within ninety (90) days of the judgment.
6. Failure to refund the monies as ordered, the 4^th respondent would not hold office in any capacity as a public officer or in any public office.
7. The 4^th respondent ordered to pay the petitioner his costs together with costs incurred by the 2^nd respondent and the attendant costs, but the 1^st and 2^nd respondents were to meet own costs.